Gomez v. Senkowski

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting the possession of a controlled substance after a search of his cell uncovered marihuana attached to his bedpost. Initially, we note that this CPLR article 78 proceeding was properly transferred to this Court given petitioner’s contention that the Hearing Officer was biased (see, Matter of Davis v Coughlin, 200 AD2d 904, 905, n). Despite petitioner’s contention, the record indicates that the Hearing Officer considered petitioner’s testimony. The fact that the Hearing Officer did not credit petitioner’s assertion that the marihuana was not his does not constitute bias (see, Matter of Nelson v Selsky, 239 AD2d 795). Furthermore, the misbehavior report and the positive test results indicating marihuana provide substantial evidence to support the determination of petitioner’s guilt (see, Matter of Valentine v Coughlin, 200 AD2d 838).

Mikoll, J. P., Mercure, Casey, Yesawich Jr. and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.